Do protestors have the constitutionally protected right to picket your fallen soldier’s funeral and harass the proceedings? That is the question the Supreme Court will attempt to answer after it heard oral arguments this past week in Snyder v. Phelps—a case where the jury awarded a $5 million verdict against a Kansas pastor who has made headlines by protesting the funerals of fallen service members.

Four years ago, Marine Lance Corporal Matthew A. Snyder was killed while serving in Iraq and his family planned for a private funeral at their church. Rev. Fred W. Phelps, Sr., the pastor of Westboro Baptist Church in Topeka, Kansas, and six of his family members decided to stage a protest at the funeral.

The Westboro Baptist Church, which publishes the website www.godhatesfags.com, believes that God hates America because of the prevalence and tolerance of homosexuality, particularly in the military. During this particular funeral protest, they carried signs stating “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers.”

The father of the fallen marine, Albert Snyder, sued the protestors for, among other things, intentional infliction of emotional distress. The jury awarded Snyder $5 million in damages, a verdict which was later overturned by the Fourth Circuit Court of Appeals on the grounds that the protesters’ speech was protected by the First Amendment.

The First Amendment, however, provides that, “Congress shall make no law…abridging the freedom of speech” (emphasis added). But there is no federal, state, or local law at issue in this case. No one is arguing that the government tried to suppress Rev. Phelp’s speech in anyway.

This suit is entirely private in nature. It involved the offensive remarks made by one private individual against another private individual at a private event. In a type of personal injury suit, the aggrieved party sued the harasser in court for emotional damages.

How, then, does the First Amendment apply to this case at all? In cases such as New York Times v. Sullivan and Shelley v. Kraumer, the Supreme Court attempted to justify the First Amendment’s reach into private suits by relying on the tenuous argument that, because the power of the state is used to enforce the verdict (i.e., through the court system), the government is in fact suppressing the speech at issue.

In essence, the Court reasons that, since the court system coercively transfers money from A to B because of A’s speech, that it becomes a government restriction on speech. It is an ingenious but dangerous argument that brings every single court action under the Constitution’s orbit. So long as there is a plausible political or social commentary behind one’s actions, he is now immune from liability.

If this were the case, a minority resident would have no recourse against his prejudice neighbors if they decided to demonstrate outside his property every night, day after day. Or a host could not evict a rowdy house guest who was becoming verbally abusive if that guest was doing so as a political commentary. And suits for slander and libel would be impossible.

And taking the Court’s precedent to its logical conclusion, no one could sue for monetary damages because, if awarded, the court would be depriving the defendant of private property without just compensation in violation of the 5th Amendment. And no marriage could be dissolved because the Contract Clause prohibits states from breaking contracts.

Since these results were clearly not intended by the Constitution, the Court should use this case to overrule its past precedents and affirm that the mere application of neutral principles to enforce private suits does not constitute government action. The Constitution was intended to only govern public behavior, not private.

About the Author

Nathan W. Tucker

Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.